Advertising UpdatePrepared by the Staff of The Standing Committee on Advertising______________________________________________________'Recent Decisions Of The Board Of Governors On AdvertisingMarch, July and October 2012

The Board of Governors of The Florida Bar considers appeals from opinions of the Standing Committee on Advertising. The Board’s decisions on advertising issues at its most recent meeting are as follows:

1. Misleading Information in Advertisements

a. Rule 4-7.2(c)(1) provides that “A lawyer shall not make or permit to be made a false, misleading, deceptive, or unfair communication about the lawyer or the lawyer’s services.” The board affirmed the committee’s decision determining that it is impermissible for an attorney to use an illustration on his business card used to promote his practice in seeking appointments to perform private trial resolution of a silhouette of a faceless person in judicial robes on a bench because it is misleading in violation of Rule 4-7.2(c)(1) because it implies that the attorney is a sitting judge. Additionally, the board recommended that the attorney may use the following statement in advertisements, “John Doe, available to serve as private trial resolution judge” because the statute allowing private trial resolution requires that an eligible lawyer be appointed in each individual matter and does not provide for an ongoing status as a private trial resolution judge.

b. The board reversed the Standing Committee on Advertising’s opinion determining that a captive law firm in which all the lawyers are salaried employees of an insurance company who represent insureds may hold itself out as “Smith and Jones” where the two named lawyers jointly supervise all the other lawyers in the insurance company unit as long as the name “Smith and Jones” is accompanied by a disclosure that they are salaried employees of the insurance company and meet all the requirements of Rule 4-7.9(g).

2. Quality of Legal Services

The board affirmed the Standing Committee on Advertising’s opinion that the following italicized language describes or characterizes the quality of the services being offered and therefore is prohibited by Rule 4-7.2(c)(2):

Board Certification is synonymous with the term ‘specialist or expert’ because of its high standards for professional excellence.

3. Past Successes

Rule 4-7.2(c)(1)(F) prohibits any statement in lawyer advertising that contains any reference to past successes or results obtained. The board voted to reverse the Standing Committee on Advertising’s opinion determining that the website address AbogadosconResultados.com(English: AttorneyswithResults.com) appearing in a radio advertisement and found that the address is permissible because the website address does not refer to any particular result and because the term is neutral.

4. Lawyer Referral Services

The board affirmed the Standing Committee on Advertising’s decision that a lawyer referral service may not have a fee arrangement with participating lawyers, in which lawyers pay a fixed fee of $300 to the lawyer referral service for each case accepted as a referral from the service and which the lawyer bills to the client as a cost as it constitutes a division or sharing of fees with a nonlawyer in violation of Rule 4-7.10(a)(2) and 4-5.4(a).

Recent Decisions Of The Standing Committee On AdvertisingMay, August and September 2012

At the committee’s recent meeting it made the following decisions on appeals from staff opinions on lawyer advertising:

1. Misleading Information in Advertisements

a. Rule 4-7.2(c)(1)(A) provides that “A lawyer shall not make or permit to be made a false, misleading, deceptive communication about the lawyer or the lawyer‟s services. A communication violates this rule if it: (A) contains a material misrepresentation of fact or law[.]”The committee found that the following use of a plural pronoun is misleading in violation of Rule 4-7.2(c)(1)(A) because the attorney is a sole practitioner:

Ask us about payment options!

b. Additionally, the committee determined that the following language is misleading in violation of Rule 4-7.2(c)(1), in a proposed arrangement with CPAs to hire the CPAs for a contingent fee of $1000 per successful claim for clients referred to the law firm by the CPA in BP Oil administrative claims, because the lawyer is not permitted under the Rules of Professional Conduct to enter into the proposed working arrangement with a non-lawyer:

Are you interested in a working relationship with a law firm that has potential to generate revenue for your CPA firm and your clients?

Once we are hired, you provide us with your client‟s financial documentation, sign our certification that you prepared same (we provide a form), and send us an invoice.

Our firm prepares and argues the claim, and assuming we have a successful claim:

YOUR FIRM IS PAID $1,000.00.

The committee determined that the advertisement, which offers to pay CPA firms at a rate of $1000 per client of the CPA firm referred to the law firm in BP Oil Administrative claims cases, violates Rule 4-7.2(c)(14) which prohibits an attorney from giving something of value in exchange for a referral.

c. The committee found that the following italicized statement is not misleading in violation of Rule 4-7.2(c)(1)(A) because insurance companies are not actual persons capable of caring:

And now I’ve got an insurance company that doesn’t seem to care. That’s because they don’t.

2. Past Successes

Rule 4-7.2(c)(1)(F) prohibits any statement in lawyer advertising that contains any reference to past successes or results obtained. The committee determined that the following language refers to past successes or results in violation of Rule 4-7.2(c)(1)(F) because the word “successfully” is vague and not subject to objective verification:

The committee determined that the statement “Get an Expert,” without indicating which lawyer in the firm is board certified, improperly claims firm certification in violation of Rule 4-7.2(c)(6) and 6-3.4(c).

4. Direct Mail

a. The committee determined that the language “NOTICE: LAWSUIT FILED AGAINST YOUR BUSINESS” on the outside of the envelope in a direct mail communication reveals the nature of the prospective client’s legal problem in violation of Rule 4-7.4(b)(2)(J).

b. Additionally, the committee determined that the use of a self-mailer for foreclosure and loan modification cases that has perforated tear-off sides and cross hatching on the reverse side of the envelope is not misleading for two proposed envelopes: one with the return address using just the firm’s name and one with the firm’s name with “Information Enclosed”; but affirmed staff’s opinion that the self-mailer with perforated tear-off sides and cross hatching on the reverse side using the firm name with tracking # and record ID is misleading because it is deceptively similar to a communication from a financial institution or government entity.The information provided in this article is for educational purposes. The content of any advertisement noted in this article may constitute the intellectual property of the advertising lawyer or another person and use of any of the content of the advertisements may require permission of the copyright holder. If you have any questions regarding lawyer advertising, call the Ethics Hotline at 1-800-235-8619 and we will be happy to assist you. You may also review the advertising rules and sample advertisements on the Bar’s website at www.flabar.org.